Jones Creek Investors, LLC et al v. Columbia County, Georgia et al

Filing 552

ORDER denying 540 Motion for an accounting to protect consent decree funds. Columbia County is not entitled to accounting. Signed by Chief Judge Lisa G. Wood on 3/13/2017. (csr)

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JONES CREEK INVESTORS, LLC
and SAVANNAH RIVERKEEPER,
INC. ,

Plaintiffs,
No.

1;11-CV-174

V.

COLUMBIA COUNTY,

GEORGIA

and CSX TRANSPORTATION,
INC.

Defendants,

ORDER

Defendant
moves

for

account

other

Columbia

Plaintiff

for

money

defendants

Jones

JCI

in

County,
Creek

received

this

Georgia

("Columbia

Investors,

under

LLC

consent

litigation.

Dkt.

County")

("JCI")

to

decrees

with

540.

This

No.

motion will be denied.
BACKGROUND

JCI

Georgia.

owns

a

Dkt. No.

golf

club

94 1 6.

and

lake

Id.

discharge

is

of

lawsuit.

See generally id.

by

damages and remediation.

AO 72A

(Rev. 8/82)

Columbia

Its property floods,

to excess storm-water discharge.

caused

in

failures

Id.

JCI

f

the

seeks,

ff 192,

343,

181.

allegedly due
JCI

claims the

defendants
among
365.

County,

in

this

other things,

Three

sets

of

204,

211,

227,

189,

defendants

269,

settled

326.

with

Each

JCI.

Dkt.

settlement

Nos.

agreement

committed the defendant to putting money into escrow pending
the

defendant's

dismissal,

with

the

amount

including

^'a

reasonable portion of the remediation and restoration costs."
Dkt.
at

No.

548-1

7.

Each

undertaken
No.

at
also

or

would

548-2 at 6-7;

JCI
211-1,

filed

548-2 at

No.

Each

Dkt.

Dkt.

each

No.

No.

548-3

defendant

548-1

at

6-7;

had

Dkt.

548-3 at 8-11.

consent

decrees.

parroted

above,
Dkt.

10; Dkt. No.

5-6;

remediation

undertake.

Dkt.

described

No.

described

party beneficiaries.
1 at 6-7,

Dkt.

proposed

269-1.

language

5-6;

and
No.

the

Dkt.

settlement

disclaimed

11;

189-1,

agreement's

having

189-1 at 6-7,

269-1 at 7-10,

Nos.

any

Dkt.

third-

No.

211-

13.

Each proposed consent decree was reviewed by the federal
government,

pursuant to the Clean Water Act.

1365(c)(3);

Dkt.

Nos.

not object to them.
remediation

required
completed
partial,

and

to
in

197,

311.

It noted that

restoration

complete"
a

226,

that

because

piecemeal

The

See 33 U.S.C.

United States

the

that

fashion,"

.

.

.

No.

226 at 2;

Dkt.

No.

defendants

work
the

and JCI was "reluctant to have the

see also Dkt.

did

JCI was being paid ""for

involved in the remediation and restoration."

2;

§

could

not

settlements
.

.

.

Dkt.

311 at 3.

were

^^be
were

defendants
No.

197 at

After receiving these non-objections,
the consent decrees.

Columbia

Dkt. Nos.

County

now

204,

227,

complains

the Court entered

326.

that

JCI

has

not

begun

remediation and must both account for the consent-decree money

and ^Mescribe when and how i t intends to remediate the impacts

allegedly caused by" the defendants who settled.
at

2.

JCI

responded

in

opposition,

dkt.

no.

Dkt. No. 540
548,

and

the

motion is now ripe for disposition.
LEGAL STANDARD

Accounting
Co.,

No. CV213-069,

2015) .

is

appropriate."

cannot

law.

an

equitable

remedy.

2015 WL 5821501,

Phillips

v.

(S.D. Ga.

Sept.

at *7

Publ^g
14,

A court ^^has broad discretion to determine whether i t

Commodities,

it

is

First

Inc.,

be

766

F.2d 1007,

ordered

Dairy Queen,

Commodity

unless

Inc.

v.

Traders,
1011

there

Wood,

Inc.

(7th Cir.

is

no

369 U.S.

v.

1985).

adequate
469,

Heinold

478

But

remedy

at

(1962).

DISCUSSION

Accounting would be inappropriate here.
lacks

the

details

right

^Mebts

contract or a

Inc.,

466 F.

(citing,

Assocs.

of

relationship

to

and credits between parties
fiduciary relation."

Supp.

inter

Ltd.

sort

2d 69,

alia,

P^ ship,

P.V.

549

103

(D.D.C.

Props.,

A.2d

Bates v.

403,

Columbia County
JCI.

arising out
Nw.

2006)

Inc.

409

v.

Accounting
of a

Human Servs.,

(emphasis added)
Rock

(Md.

Ct.

Creek

Spec.

Vill.

App.

1998)

(^'An accounting may be had where one party is under an

obligation

to

pay

records which are

money

to

another

based

upon

facts

and

known and kept exclusively by the party to

whom the obligation is owed,

or where there is a confidential

or fiduciary relation between the parties .

.

.

see also

>

Am.

Air Filter Co.

1975);

Phillippi

2:07-CV-1001,

v.
v.

McNichol,
Jim

527

F.2d 1297,

Phillippi,

2009 WL 1911763,

at *3

Inc.,

1300

Nos.

(3d Cir.

2:07-CV-916,

(S.D. Ohio June 26,

2009)

C'[A]ccounting . . . is designed only to provide disclosure to
a

[party]

(citing

of how much he or she is owed by another

Bradshaw

1972)));

1555,
require
such a

of.

1566

v.

Therrell

(11th

party

to

v.

Cir.
prove

relationship,

Navy Fed.

Thompson,
Ga.

454

Marble

1992)

^'something

52

F.

Holdings

is

No.

189-1 at

11

No.

211-1 at 10

owed

79

Supp.

3d 1,

960

Georgia
them") .

10

.

(6th

Corp.,

inappropriate.

Columbia County does not allege such a

accounting must be denied.^

75,

(interpreting

accounting is

Credit Union,

F.2d

.

Dkt. No.

F.2d

Haynes v.
2014).

relationship here,

269-1 at 13

to

Without

(D.D.C.

See generally Dkt. No.

."

Cir.

law

so

540; Dkt.

(disavowing third-party beneficiaries);
(same);

.

Dkt.

(same).

^ For that matter, it does not bother to cite to any case law discussing
equitable accounting, or even to identify the elements thereof.
See
generally id.
"There is no burden upon the district court to distill
every potential argument that could be made based upon the materials
before
it
...
.
Rather,
the
onus
is
upon
the
parties
to formulate arguments."
Argo v.
Gregory,
4467268, at *11 (S.D. Ga. Sept. 10, 2014).

No.

CV

212-213,

2014

WL

Columbia

County

argues

that

JCI

is

not

mitigating

its

alleged damages,

and that Columbia County's residents have an

interest

doing

in

JCI

remediation.

Dkt.

No.

540

at

10-11.

The mitigation contention does not support accounting because

there is an easy legal remedy:
for the public interest,

reducing JCI's damages.^

accounting does not let a party find

out how much its opponent owes somebody else.
WL 1911763,

at *3.

figure

how much

now.

out

As

Phillippi, 2009

Even less so would i t let Columbia County

JCI

should be

spending on

others

right

Columbia County is not entitled to accounting.
CONCLUSION

Thus,

the present motion, dkt. no.

SO ORDERED, this 13th day of March,

540,

2017.

LI^ GODBEY WOdJD,
UNITED STATES

SOUTHERN

^ If the Court

later

finds

that

JCI's

is DENIED.

CHIEF JUDGE

DISTRICT

COURT

DISTRICT OF GEORGIA

"machinations" prevent Columbia

County "from obtaining the requisite information" on final damages through
ordinary means, i t will entertain a renewed motion for accounting.
lA
C.J.S. Accounting § 11 (2016 update).